[Cite as State ex rel. Peregrine Health Servs. of Columbus, L.L.C. v. Sears, Dir., Ohio Dept. of Medicaid, 2020-

Ohio-3426.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State ex rel. Peregrine Health Services : 

of Columbus, LLC dba Summit's Trace 

Healthcare Center et al., : 

 Appellants/ : 

 Cross-Appellees, 

 : No. 18AP-16 

v. (C.P.C. No. 17CV-1284)

 : 

Barbara Sears, Director, (REGULAR CALENDAR) 

Ohio Department of Medicaid, : 

 

Appellee/ : 

Cross-Appellant. 

 : 

 

D E C I S I O N 

Rendered on June 23, 2020 

 

On brief: Carlile Patchen & Murphy LLP, Maria Mariano 

Guthrie, and Jeffrey J. Patter, for appellants/cross-appellees. 

Argued: Maria Mariano Guthrie. 

On brief: Dave Yost, Attorney General, Rebecca L. Thomas, 

and Justin T. Radic, for appellee/cross-appellant. Argued: 

Rebecca L. Thomas. 

 

APPEAL from the Franklin County Court of Common Pleas 

KLATT, J. 

{¶ 1} Appellants/cross-appellees, Peregrine Health Services of Columbus, LLC dba 

Summit's Trace Healthcare Center and Peregrine Health Services of Cincinnati, LLC dba 

Oak Pavilion Nursing Center (hereinafter collectively referred to as "Peregrine"), appeal 

from a December 11, 2017 judgment of the Franklin County Court of Common Pleas 

denying their petition for a writ of mandamus ordering appellee/cross-appellant, Barbara 
No. 18AP-16 2 

Sears, Director of the Ohio Department of Medicaid (hereinafter referred to as "ODM") to 

distribute critical access incentive payments to them for state fiscal year 2017. Following a 

bench trial, the trial court entered judgment denying the writ of mandamus, finding 

Peregrine was not entitled to the writ. For the following reasons, we affirm the trial court's 

decision denying the requested writ. 

{¶ 2} ODM filed a conditional cross-appeal from a November 1, 2017 decision of 

the Franklin County Court of Common Pleas denying ODM's March 7, 2017 motion to 

dismiss Peregrine's complaint for failure to state a claim upon which relief may be granted 

pursuant to Civ.R. 12(B)(6). For the following reasons, we decline to address ODM's crossappeal, finding it moot. 

I. FACTS AND PROCEDURAL BACKGROUND 

 A. Overview 

{¶ 3} This mandamus action arose out of Peregrine's claim that ODM had denied 

them critical access incentive payments for which they were eligible under R.C. 5165.15 and 

5165.23 for state fiscal year 2017. Peregrine claims the denial was based on ODM's 

incorrect and unreasonable interpretation of the term "occupancy rate" as described in R.C. 

5165.23(A)(2) to determine whether a nursing facility qualifies for such payments. 

{¶ 4} ODM is responsible for determining and issuing critical access incentive 

payments to qualified nursing facilities according to R.C. 5165.15 and 5165.23. Pursuant to 

R.C. 5165.15, ODM determines how much a Medicaid-funded nursing facility receives and 

then distributes the funds as a "total per Medicaid day payment rate." This "total per 

Medicaid day payment rate" is computed by determining the sum of six components, one 

of which is a critical access incentive payment for qualifying nursing facilities. R.C. 

5165.15(A)(5). If a nursing facility qualifies for a critical access incentive payment, then 

ODM totals the facility's other components under R.C. 5165.15(A)(1) through (4) and (6) 

and increases the total by five percent. R.C. 5165.23(B). The five percent increase 

constitutes the critical access incentive payment. R.C. 5165.23(A) provides criteria a facility 

must meet to receive a critical access incentive payment, one of which is to have an 

occupancy rate of at least eighty-five percent as of the last day of the calendar year 

immediately preceding the fiscal year. 
No. 18AP-16 3 

{¶ 5} ODM's decision regarding whether a nursing facility qualifies for a critical 

access incentive payment is subject to reconsideration when sought by the facility "on the 

basis of a possible error in the calculation of the rate." Ohio Adm.Code 5160-3-24. ODM 

then issues a written reconsideration decision. ODM's reconsideration decision is not 

subject to any administrative remedy under R.C. Chapter 119 or any other provision of the 

Revised Code; therefore, a mandamus action is Peregrine's only legal remedy. Mandamus 

is an appropriate remedy where no statutory right of appeal is available to correct an abuse 

of discretion by an administrative body. State ex rel. Cydrus v. Ohio Public Emps. 

Retirement Sys., 127 Ohio St.3d 257, 2010-Ohio-5770, ¶ 12. 

B. Facts

{¶ 6} The facts of the underlying matter are undisputed. Peregrine Health Services 

of Columbus, LLC operates Summit's Trace Healthcare Center, while Peregrine Health 

Services of Cincinnati, LLC operates Oak Pavilion Nursing Center. (Feb. 3, 2017 Petition at 

¶ 1-2.) ODM denied critical access incentive payments to Peregrine and Peregrine 

requested reconsideration. ODM denied such reconsideration. Subsequently, on 

February 3, 2017, Peregrine filed a verified petition for a writ of mandamus seeking a writ 

to compel ODM to distribute critical access incentive payments to them under R.C. 

5165.15(A)(5) and 5165.23 for state fiscal year 2017. 

{¶ 7} The parties agree that the sole issue is the meaning of the term "occupancy 

rate" as used in R.C. 5165.23(A)(2) to calculate the critical access incentive payment. 

{¶ 8} "Occupancy rate" is a percentage of occupied days divided by available days. 

(Petition at ¶ 28.) However, Peregrine argues that the calculation of an "occupancy rate" 

for purposes of R.C. 5165.23(A)(2) should be calculated by using the number of beds 

actually in use at the nursing facility that have been certified for Medicaid care and 

reimbursement (hereinafter referred to as "certified beds") as the denominator in the 

equation. ODM argues the determination is the maximum number of beds that the facility 

was authorized by the Ohio Department of Health to make available or the maximum 

number of beds that the facility has licenses for and, therefore, could be made available for 

occupancy in the denominator of the equation (hereinafter referred to as "licensed beds"). 

(Nov. 16, 2017 Moore Aff. at ¶ 7.) Peregrine claims that ODM "wrongfully and arbitrarily" 

denied them the critical access incentive payments based on ODM's incorrect 
No. 18AP-16 4 

interpretation of the term "occupancy rate" by using licensed beds rather than certified beds 

in the calculation. (Petition at ¶ 32, 34.) 

{¶ 9} It is not uncommon for nursing facilities to have a different number of 

licenses for beds than the number of actual Medicaid-certified beds. For example, 

Summit's Trace had licenses for 201 beds but only had 177 to 180 beds that existed in the 

facility and could be occupied by a patient. (Heaphy Feb. 1, 2017 Aff. at ¶ 12, 20.) Oak 

Pavilion had licenses for 150 beds but only 130 beds existed and were available to be 

occupied by patients. Id. at ¶ 32. 

{¶ 10} On March 7, 2017, ODM filed a motion to dismiss the complaint for failure to 

state a claim upon which relief may be granted pursuant to Civ.R. 12(B)(6). ODM argued 

its interpretation of occupancy rate was not unreasonable, irrational, or inconsistent with 

the statutory purpose and, consequently, Peregrine had failed to state a claim for which 

relief could be granted. 

{¶ 11} On April 4, 2017, Peregrine filed a memorandum in opposition to ODM's 

motion to dismiss, attaching an affidavit and supporting documents. On April 17, 2017, 

ODM filed a reply in support of its motion to dismiss. On May 3, 2017, Peregrine requested 

leave to file a sur-reply, which was opposed by ODM by memorandum filed the same day. 

{¶ 12} By journal entry dated November 1, 2017, the trial court denied ODM's 

motion to dismiss, denied Peregrine's motion for leave to file sur-reply, and set the matter 

for supplemental briefing and hearing. 

{¶ 13} On November 22, 2017, the trial court conducted a bench trial and, in 

addition to live testimony, it admitted documentary evidence including the verified petition 

for a writ of mandamus and the affidavits that had previously been filed. The trial court 

qualified as experts all three witnesses that testified during the trial. 

{¶ 14} On December 11, 2017, the trial court issued its decision denying the 

requested writ. The trial court noted that the term "occupancy rate" is not defined in R.C. 

Chapter 5165 and that "[t]he statute does not specifically address whether to use 'licensed' 

or 'certified' beds to calculate critical access payments under 5165.23(A)(2)." (Dec. 11, 2017 

Decision at 5.) The trial court found R.C. 5165.23(A)(2) ambiguous. The trial court stated: 

A nursing facility occupancy rate could be calculated using all 

of its licensed beds, or using only Medicaid certified beds. 

There are pro's [sic] and con's [sic] to each approach. If a 
No. 18AP-16 5 

facility is remodeling – in order to better serve residents – and 

takes licensed beds temporarily out of service the occupancy 

rate will go down if licensed beds are the basis for the 

computation, perhaps eliminating the critical access incentive 

payment for a year or more. But, the record suggests a facility 

that does not meet the 85% occupancy rate may simply be 

"sitting-on" excess licensed beds, or may even have quality of 

care issues that keep its population relatively low. Figuring out 

what approach is best for the public in conducting critical 

access incentive payment calculations is, therefore, a matter of 

judgment. The General Assembly did not settle that issue with 

this statutory language. The Department charged with 

implementation of the language is left to apply the statutory 

concept in a sensible manner. 

(Decision at 6.) 

{¶ 15} The trial court found that it was appropriate to defer to ODM's interpretation 

of "occupancy rate" for purposes of determining whether a nursing facility qualified for a 

critical access incentive payment. The trial court found the evidence showed ODM "was 

acting in a reasonable and good faith manner in implementing the modest legislative 

guidance on computing an 'occupancy rate' pursuant to R.C. 5165.23(A)(2)." (Decision at 

7.) Relying on the holding of In re Champaign Wind, L.L.C., 146 Ohio St.3d 489, 2016-

Ohio-1513, ¶ 36 ("when a statute does not prescribe a particular formula or methodology, 

the appropriate administrative agency has broad discretion in deciding how to implement 

its duties"), the trial court concluded that ODM "must be allowed" broad discretion in 

deciding how to implement R.C. 5165.23(A)(2). (Decision at 7.) The trial court concluded 

that Peregrine had not demonstrated entitlement to a writ of mandamus. 

{¶ 16} On January 5, 2018, Peregrine timely appealed from the December 11, 2017 

judgment. On January 12, 2018, ODM conditionally cross-appealed from the trial court's 

entry journalized on November 1, 2017 that denied ODM's motion to dismiss the 

mandamus action. 

II. ASSIGNMENTS OF ERROR

{¶ 17} Peregrine presents three assignments of error for review: 

[1.] The trial court erred in dismissing [Peregrine's] Writ of 

Mandamus when the trial court gave improper deference to the 

Ohio Department of Medicaid's interpretation of R.C. 5165.23. 
No. 18AP-16 6 

[2.] The trial court erred when it found that the Ohio 

Department of Medicaid's interpretation of R.C. 5165.23 was 

reasonable. 

[3.] The trial court abused its discretion when it failed to find 

that the Ohio Department of Medicaid's denial of the critical 

access incentive payments was unreasonable, arbitrary and/or 

unconscionable. 

III. CONDITIONAL CROSS-APPEAL 

{¶ 18} ODM filed a conditional cross-appeal, requesting that the trial court's 

decision denying ODM's Civ.R. 12(B)(6) motion to dismiss be reversed in the event this 

court grants the relief sought by Peregrine: 

The lower court incorrectly denied the Department's motion to 

dismiss based on failure to state a claim upon which relief could 

be granted. (See Comm. Pl. 11/1/2017 Journal Entry at 3.) 

IV. LAW AND DISCUSSION – APPEAL 

A. Mandamus 

{¶ 19} To be entitled to relief in mandamus, a relator must demonstrate that 

(1) relator has a clear legal right to the relief prayed for, (2) respondent is under a clear legal 

duty to perform the act prayed for, and (3) relator has no plain and adequate remedy in the 

ordinary course of law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28, 29 (1983); 

PBP, Inc. v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 13AP-36, 2013-Ohio-4344. 

"Mandamus is an extraordinary remedy which is to be exercised with caution and issued 

only when the right is clear." Id. at ¶ 13, citing State ex rel. Rittner v. Bumb, 6th Dist. No. 

F-07-017, 2007-Ohio-5319, ¶ 6. Therefore, in order for this court to issue a writ of 

mandamus in this matter, Peregrine must establish a clear legal right to critical access 

incentive payments for state fiscal year 2017, a clear legal duty on the part of ODM to issue 

such payments to them, and the lack of an adequate remedy in the ordinary course of law. 

{¶ 20} There is no dispute that ODM had a clear legal duty to determine and pay 

critical access incentive payments to qualified nursing facilities for state fiscal year 2017. 

Nor is there any dispute that, because Ohio Adm.Code 5160-3-24 bars any administrative 

remedy of ODM's reconsideration decision, this mandamus action is Peregrine's only 

remedy. Consequently, the remedy of a writ of mandamus is appropriate in this matter if 
No. 18AP-16 7 

Peregrine can demonstrate that ODM improperly and unreasonably calculated the critical 

access incentive payments at issue here. 

B. Standard of Review 

{¶ 21} The parties disagree on the standard of review that applies in determining 

whether the trial court erred in entering judgment in favor of ODM. ODM cites this court's 

holding in State ex rel. BDFM Co. v. Ohio Dept. of Transp., 10th Dist. No. 11AP-1094, 2013-

Ohio-107, which supports the proposition that a trial court's decision in a mandamus action 

is generally reviewed for abuse of discretion. ODM also asserts that this court should defer 

to ODM's reasonable construction of its statutes and rules, regardless of the standard of 

review applied. 

{¶ 22} Peregrine challenges ODM's argument that our standard of review is an 

abuse of discretion review and instead argues that a de novo review should be employed. 

Peregrine acknowledges that, generally, the standard of review is an abuse of discretion. 

ODM has conceded, however, that "[t]he question presented here is purely legal; there are 

no disputed material facts." See ODM Combined Brief at 1. Peregrine relies on this court's 

holding in State ex rel. V&A Risk Servs. v. State Bur. of Workers' Comp., 10th Dist. No. 

11AP-742, 2012-Ohio-3583, ¶ 19 (where a "stipulated record presents a question of law, 

appellate courts review a writ of mandamus issued by a trial court de novo"), to support 

their position that de novo is the appropriate standard of review here. 

{¶ 23} Having independently reviewed the record and the law regarding the 

standard of review in a case such as this, we find de novo review appropriate. The parties 

and trial court agree there are no material disputed facts, and the only issue for review is 

whether ODM's interpretation of R.C. 5165.23(A)(2) was proper and reasonable, which is 

purely a question of law. "Statutory interpretation is a question of law subject to de novo 

review." Silver Lining Group EIC Morrow Co. v. Ohio Dept. of Edn. Autism Scholarship 

Program, 10th Dist. No. 16AP-398, 2017-Ohio-7834, ¶ 33. 

C. Assignments of Error 

{¶ 24} Because they are interrelated, we address Peregrine's assignments of error 

together. Peregrine asserts the trial court erred by affording improper deference to ODM's 

interpretation of R.C. 5165.23, which resulted in its finding that ODM's interpretation of 

R.C. 5165.23 was reasonable. Peregrine asserts that ODM's interpretation of R.C. 5165.23 
No. 18AP-16 8 

is unreasonable and resulted in an improper denial of critical access incentive payments to 

Peregrine for fiscal year 2017. 

{¶ 25} As recognized, there are no disputed facts. Both Peregrine and ODM agree 

Peregrine satisfied three of the four criteria of R.C 5165.23 in order to receive incentive 

payments. The parties do not dispute the data submitted by Peregrine that established the 

number of licensed beds and the number of certified beds. Therefore, the sole issue 

presented to the trial court was whether the calculation of the occupancy rate is determined 

by using the number of licensed beds, as argued by ODM, or by using the number of 

certified beds, as argued by Peregrine. 

{¶ 26} The parties agree that, in 2012,1 the Ohio General Assembly enacted critical 

access incentive payments that could be awarded to nursing facilities located in highly 

distressed urban and rural communities to encourage the nursing facilities to remain in 

those communities, thereby keeping "vital and needed senior health services in place" in 

those communities. (Petition at ¶ 11-12; ODM Mar. 7, 2017 Mot. to Dismiss at 2.) The 

parties likewise agree the critical access incentive payments "were put in place to address 

the potential for a lack of access to healthcare by both rural and inner-city residents, a high 

proportion of whom are poor and chronically ill and—thus—more likely to be Medicaid 

recipients," and the critical access incentive payments make it economically feasible for the 

nursing facilities to remain in their communities, where they also help by providing 

significant local employment. (Mar. 7, 2017 ODM Mot. to Dismiss at 2, citing Petition at 

¶ 11-12.) 

{¶ 27} R.C. 5165.15 establishes the total per Medicaid day payment rate, including 

the critical access incentive payment, that ODM shall pay a nursing facility during a state 

fiscal year. Calculation of the Medicaid day payment rate for fiscal year 2017 required ODM 

to determine the sum of all the following in accordance with R.C. 5165.15(A): 

(1) The per medicaid day payment rate for ancillary and 

support costs determined for the nursing facility under 

section 5165.16 of the Revised Code; 

 

1 The statute, previously codified as R.C. 5111.246 but now codified as R.C. 5165.23, became effective on 

September 10, 2012. 
No. 18AP-16 9 

(2) The per medicaid day payment rate for capital costs 

determined for the nursing facility under section 5165.17 of the 

Revised Code; 

(3) The per medicaid day payment rate for direct care costs 

determined for the nursing facility under section 5165.19 of the 

Revised Code; 

(4) The per medicaid day payment rate for direct care costs 

determined for the nursing facility under section 5165.19 of the 

Revised Code; 

(5) If the nursing facility qualifies as a critical access nursing 

facility, the nursing facility's critical access incentive payment 

paid under section 5165.23 of the Revised Code. 

{¶ 28} In order for a nursing facility to qualify for the critical access incentive 

payment provided for in R.C. 5165.15(A)(5), ODM must determine that the nursing facility 

satisfies the requirements of R.C. 5165.23(A), which provided for state fiscal year 2017, as 

follows: 

(A) Each state fiscal year, the department of medicaid shall 

determine the critical access incentive payment for each 

nursing facility that qualifies as a critical access nursing facility. 

To qualify as a critical access nursing facility for a state fiscal 

year, a nursing facility must meet all of the following 

requirements: 

(1) The nursing facility must be located in an area that, on 

December 31, 2011, was designated an empowerment zone 

under the "Internal Revenue Code of 1986," section 1391, 26 

U.S.C. 1391. 

(2) The nursing facility must have an occupancy rate of at 

least eighty-five per cent as of the last day of the calendar year 

immediately preceding the state fiscal year. 

(3) The nursing facility must have a medicaid utilization rate of 

at least sixty-five per cent as of the last day of the calendar year 

immediately preceding the state fiscal year. 

(4) The nursing facility must have been awarded at least five 

points for meeting accountability measures under section 

5165.25 of the Revised Code for the fiscal year and at least one 

of the five points must have been awarded for meeting the 

accountability measures identified in divisions (C)(9), (10), 

(11), (12), and (14) of section 5165.25 of the Revised Code. 
No. 18AP-16 10 

(Emphasis added.) H.B. No. 483, as enacted by the 130th General Assembly, effective 

Sept. 15, 2014. 

{¶ 29} "The primary goal of statutory construction is to ascertain and give effect to 

the legislature's intent in enacting the statute. The court must first look to the plain 

language of the statute itself to determine the legislative intent." (Citations omitted.) State 

v. Bundy, 4th Dist. No. 11CA818, 2012-Ohio-3934, ¶ 46. We must consider the statutory 

language in context, construing words and phrases according to the rules of grammar and 

common usage. Bartchy v. State Bd. of Edn., 120 Ohio St.3d 205, 2008-Ohio-4826, ¶ 16, 

citing State ex rel. Stoll v. Logan Cty. Bd. of Elections, 117 Ohio St.3d 76, 2008-Ohio-333, 

¶ 34. 

{¶ 30} A court may only interpret a statute when " 'the words of a statute are 

ambiguous, uncertain in meaning, or conflicting.' " In re Brooks, 136 Ohio App.3d 824, 

829 (10th Dist.2000), quoting State ex rel. Burrows v. Indus. Comm., 78 Ohio St.3d 78, 81 

(1997). Ambiguity exists when the language of a statute is susceptible to more than one 

interpretation. Silver Lining Group, 2017-Ohio-7834, at ¶ 35, citing Columbus v. Mitchell, 

10th Dist. No. 16AP-322, 2016-Ohio-7873, ¶ 6. R.C. 1.49 provides that when a statute is 

ambiguous, a court may consider "other matters," such as the object sought to be attained, 

the legislative history, the consequence of a particular construction, and the administrative 

construction of the statute. 

{¶ 31} ODM asserts that R.C. 5165.23(A)(2) is ambiguous because it does not define 

"occupancy rate," while that term is defined in other sections in R.C. Chapter 5165, 

including R.C. 5165.16 and 5165.17. ODM argues that its interpretation is uniform within 

the chapter. We find that R.C. 5165.23(A)(2) is ambiguous because it does not specify how 

that rate is to be determined, and it is susceptible to more than one reasonable 

interpretation by using either licensed beds or certified beds. Here, the trial court expressly 

noted the lack of legislative guidance on the formula or methodology to be applied in 

calculating occupancy rate for purposes of determining critical access incentive payments. 

{¶ 32} " 'If a statute provides an administrative agency authority to perform a 

specified act but does not provide the details by which the act should be performed, the 

agency is to perform the act in a reasonable manner based upon a reasonable construction 

of the statutory scheme.' " Silver Lining Group at ¶ 49, quoting Cosby v. Franklin Cty. 
No. 18AP-16 11 

Dept. of Job & Family Servs., 10th Dist. No. 07AP-41, 2007-Ohio-6641, ¶ 38. If the agency 

interprets the statute in a way that " 'fills a gap or defines a term in a reasonable way in light 

of the Legislature's design [, such construction] controls, even if it is not the answer the 

court would have reached in the first instance.' " Id. at ¶ 49, citing Cosby at ¶ 38, quoting 

Regions Hosp. v. Shalala, 522 U.S. 448, 450 (1998). 

{¶ 33} "[A] 'legislative gap' is not 'equivalent to a lack of authority for the agency to 

act.' " Silver Lining Group at ¶ 50, quoting Northwestern Ohio Bldg. & Constr. Trades 

Council v. Conrad, 92 Ohio St.3d 282, 289 (2001). Moreover, " 'the power of an 

administrative agency to administer a * * * program necessarily requires the formulation of 

policy and the making of rules to fill any gap left, implicitly or explicitly,' by the legislature." 

(Emphasis omitted.) Northwestern Ohio Bldg. & Constr. Trades Council at 289, quoting 

Morton v. Ruiz, 415 U.S. 199, 231 (1974). 

{¶ 34} R.C. 5165.23 does not specify whether ODM should use licensed beds or 

certified beds when calculating occupancy rate. ODM reasonably filled the gap and 

determined it should use licensed beds to determine the occupancy rate. The General 

Assembly delegated the determination of which nursing facilities were eligible for the 

critical access incentive payments and required ODM to create the standards for that 

determination. 

{¶ 35} ODM argues that using licensed beds prevents facilities from manipulating 

the numbers in order to meet the occupancy requirement. By using certified beds, it could 

provide an incentive to facilities to choose to remove Medicaid-certified beds out of service, 

thereby decreasing the number of beds used in the denominator of the occupancy-rate 

fraction in order to artificially inflate the occupancy rate above 85 percent. It could 

encourage facilities in empowerment zones to lower the number of available beds and 

thereby result in a decrease, rather than an increase, in the local access to nursing facilities 

in those empowerment zones. (Appellee Combined Brief at 4-5; Tr. 88-95.) 

{¶ 36} Peregrine argues that using licensed beds to determine occupancy rate is 

contrary to ODM's prior administrative practices. Under R.C. 5165.34, if a facility has a 

patient who is temporarily absent due to a hospital stay or other reasons, Medicaid can pay 

that facility 50 percent of the Medicaid day rate if the facility has an occupancy rate 

exceeding 95 percent. Occupancy rate is not defined in that section. In determining 
No. 18AP-16 12 

occupancy rate for temporary absences under R.C. 5165.34, ODM initially used certified 

beds for a few years (approximately 2011 to 2016). However, both ODM employees who 

testified stated that using certified beds was an error, and ODM corrected the error and 

began using licensed beds under R.C. 5165.34. (Moore Tr. at 59; Dickerson Tr. at 88-89.) 

However, since 2012 when R.C. 5165.23 became effective, ODM has consistently 

interpreted occupancy rate using licensed beds for the critical access incentive payments. 

(Dickerson Tr. at 88.) Moreover, Peregrine conceded at trial that ODM had always used 

licensed beds to determine occupancy rate under R.C. 5165.23. (Tr. at 13-15.) 

{¶ 37} Further, ODM argues occupancy rate is now interpreted consistently 

throughout R.C. Chapter 5165 because ODM also uses licensed beds in the formula for 

occupancy rate in both R.C. 5165.16 and 5165.17. The term "occupancy rate" is defined in 

R.C. 5165.16 and 5165.17, and R.C. 5165.16 provides, as follows: 

(D)(2) For the purpose of determining a nursing facility's 

occupancy rate under division (D)(1)(a) of this section, the 

department shall include any beds that the nursing facility 

removes from its medicaid-certified capacity unless the 

nursing facility also removes the beds from its licensed bed 

capacity.2 

{¶ 38} One of ODM's experts, Roger Allan Dickerson, Deputy Director of the Rate 

Setting and Cost-Setting Section of ODM, testified that if the General Assembly intended 

ODM to use certified beds to calculate the occupancy rate for the critical access incentive 

payments, the General Assembly would have used such language in R.C. 5165.23. (Tr. at 

87-88.) Dickerson testified Medicaid-certified beds is a subset of licensed beds (all 

Medicaid-certified beds must first be licensed beds), and if the General Assembly had 

wanted "occupancy rate" to mean Medicaid-certified beds, they would have used 

"Medicaid-certified" as the subset. (Tr. at 87-88.) 

{¶ 39} Further, ODM argues that applying the same definition to R.C. 5165.23 as in 

R.C. 5165.16 and 5165.17 furthers the purposes that the General Assembly intended which 

was to ensure access to nursing facility healthcare for residents of underserved rural and 

inner-city areas. ODM contends that providing incentive payments only to nursing 

 

2 R.C. 5165.17 uses similar language as R.C. 5165.16, as follows: "(D)(3) For the purpose of determining a 

nursing facility's occupancy rate under division (D)(2)(a) of this section, the department shall include any 

beds that the nursing facility removes from its Medicaid-certified capacity after June 30, 2005, unless the 

nursing facility also removes the beds from its licensed bed capacity." 
No. 18AP-16 13 

facilities with high occupancy rates provides that the facilities that are used will be retained, 

and access to such facilities will be assured. (ODM Combined Brief at 4.) 

{¶ 40} Peregrine argues that R.C. 5165.16 and 5165.17 are rate-setting statutory 

provisions and thus not closely related statutes to R.C. 5165.23, an add-on incentive 

provision; therefore, we should not consider these statutes in pari materia. "It is a basic 

rule of statutory construction that where sections of a statute are in pari materia, they shall 

be construed together so as to give full force and effect to the legislative intent." State v. 

Parks, 13 Ohio App.3d 85, 86 (10th Dist.1983). All statutes relating to the same subject 

matter must be read in pari materia, and construed together, so as to give the proper force 

and effect to each and all such statutes." State v. Cook, 128 Ohio St.3d 120, 2010-Ohio6305, ¶ 45. R.C. Chapter 5165 is titled Nursing Facility Services, and all three of these 

sections are found in this same chapter of the Revised Code and involve components of 

Medicaid rates paid to nursing facilities. They involve the same general subject matter and 

address similar subjects. The sections are not so unrelated as to make in pari materia

review inappropriate. 

{¶ 41} Generally, where there is ambiguity, " '[a] reviewing court, in interpreting a 

statute, "must give due deference to an administrative interpretation formulated by an 

agency which has accumulated substantial expertise, and to which the legislature has 

delegated the responsibility of implementing the legislative command." ' " Northside 

Amateur Boxing School Bingo Club v. Hamilton Cty. Gen. Health Dist., 184 Ohio App.3d 

596, 2009-Ohio-5122, ¶ 17 (10th Dist.), quoting In re 138 Mazal Health Care, Ltd., 117 Ohio 

App.3d 679, 685 (10th Dist.1997), quoting State ex rel. McLean v. Indus. Comm., 25 Ohio 

St.3d 90 (1986). Furthermore, "in order to sustain an agency's application of a statutory 

term, a reviewing court ' "need not find that its construction is the only reasonable one." ' " 

Id., quoting 138 Mazal Health Care at 685, quoting Udall v. Tallman, 380 U.S. 1, 16 (1965), 

superseded by statute on other grounds, quoting Unemp. Comp. Comm. of Territory of 

Alaska v. Aragon, 329 U.S. 143 (1946). In the administrative law context, unless an 

administrative agency's interpretation of a statute that it has a duty to enforce is 

unreasonable, it will not be reversed. Warren v. Morrison, 10th Dist. No. 16AP-372, 2017-

Ohio-660, ¶ 10, citing State ex rel. Clark v. Great Lakes Constr. Co., 99 Ohio St.3d 320, 

2003-Ohio-3802, ¶ 10, citing Northwestern Ohio Bldg. & Constr. Trades Council, 92 Ohio 
No. 18AP-16 14 

St.3d at 287. Thus, if the administrative agency's interpretation is reasonable and 

consistent with the underlying legislative intent, this court must defer to the agency's 

interpretation and uphold it. Id., citing Oyortey v. State Med. Bd. of Ohio, 10th Dist. No. 

12AP-431, 2012-Ohio-6204, ¶ 17. 

{¶ 42} Based on the foregoing reasons, we find that ODM's interpretation of 

occupancy rate under R.C. 5165.23(A)(2) that resulted in denying critical access incentive 

payments to Peregrine for state fiscal year 2017 was not unreasonable and not contrary to 

law. We find, therefore, that the trial court did not err in deferring to ODM's interpretation 

and denying Peregrine the writ of mandamus. Peregrine's three assignments of error are 

overruled. 

V. LAW AND DISCUSSION – ODM'S CONDITIONAL CROSS-APPEAL

{¶ 43} ODM argues that the trial court improperly denied its Civ.R. 12(B)(6) motion 

to dismiss Peregrine's petition for a writ of mandamus for failure to state a claim upon 

which relief could be granted. ODM posits that Peregrine is barred from stating a valid 

claim for writs of mandamus compelling ODM to pay Peregrine critical access incentive 

payments because Peregrine did not meet the statutory criteria for such payments, based 

on ODM's interpretation of the term occupancy rate as it is used in R.C. 5165.23. (ODM's 

Combined Brief in passim.) However, ODM raised this assignment of error only 

conditionally upon our granting Peregrine's requested relief. Since we have not done so, 

we decline to address ODM's conditional assignment of error as it is moot. 

VI. CONCLUSION 

{¶ 44} Based on the foregoing, we overrule Peregrine's three assignments of error 

and affirm the judgment of the Franklin County Court of Common Pleas denying the 

requested writ of mandamus. Additionally, we decline to address ODM's conditional 

assignment of error on cross-appeal as it is moot. 

Judgment affirmed. 

LUPER SCHUSTER, J., concurs. 

BRUNNER, J., dissents. 
No. 18AP-16 15 

BRUNNER, J., dissenting. 

{¶ 45} I respectfully dissent from the decision of the majority. The matter before us 

presents an appeal and a cross-appeal on a question of law in an action for a writ of 

mandamus. Appellants/cross-appellees, Peregrine Health Services of Columbus, LLC dba 

Summit's Trace Healthcare Center and Peregrine Health Services of Cincinnati, LLC dba 

Oak Pavilion Nursing Center (hereinafter collectively referred to as "Peregrine" and "they" 

or "them"), appeal from a December 11, 2017 judgment of the Franklin County Court of 

Common Pleas denying their petition for a writ of mandamus ordering appellee/crossappellant, Barbara Sears, Director of the Ohio Department of Medicaid (hereinafter 

referred to as "ODM") to distribute critical access incentive payments to them for state fiscal 

year 2017. The trial court entered judgment following a bench trial, having found Peregrine 

not entitled to the special writ because they had not proved that ODM's interpretation of 

R.C. 5165.23(A)(2), the statutory provision at issue, was unreasonable, arbitrary, or 

unconscionable. For the reasons that follow, I would reverse the trial court's decision 

denying the requested writ. 

{¶ 46} The majority in this case denies for mootness ODM's conditional crossappeal from a November 1, 2017 decision of the Franklin County Court of Common Pleas 

denying ODM's March 7, 2017 motion to dismiss Peregrine's complaint for failure to state 

a claim on which relief may be granted pursuant to Civ.R. 12(B)(6). ODM's cross-appeal is 

conditioned on this Court granting relief to Peregrine. I concur with denying ODM's crossappeal but for reasons based on its merits and not for mootness. For the reasons that 

follow, in addition to denying ODM's cross-appeal, I would also affirm the trial court's 

decision denying ODM's motion to dismiss the underlying mandamus action. 

I. FACTS AND PROCEDURAL BACKGROUND 

A. Overview 

{¶ 47} While some of the facts stated in this dissenting opinion may be duplicative 

of those stated by the majority, I restate them for the purposes of cogency of presentation 

of how I view the law as applying here and based on my analysis of the record. 

{¶ 48} This mandamus action arose out of Peregrine's claim that ODM had denied 

them critical access incentive payments for which they were eligible under R.C. 

5165.15(A)(5) and 5165.23 for state fiscal year 2017. Peregrine claims the denial was based 

on ODM's incorrect and unreasonable interpretation of the term "occupancy rate" as 
No. 18AP-16 16 

described in R.C. 5165.23(A)(2) to determine whether a nursing facility qualifies for such 

payments. 

{¶ 49} A review of the critical access incentive payment that is the crux of the 

underlying matter is helpful at this juncture. Critical access incentive payments are 

reserved for nursing facilities that satisfy the criteria of R.C. 5165.23(A). To receive a critical 

access incentive payment, a nursing facility must be located in an "empowerment zone" as 

discussed under the "Internal Revenue Code of 1986," 26 U.S.C. 1391-92. R.C. 

5165.23(A)(1). The parties agree Peregrine satisfies this criterion. Second, a nursing facility 

must have an occupancy rate of at least 85 percent as of the last day of the calendar year 

immediately preceding the state fiscal year. R.C. 5165.23(A)(2). This second criterion is 

the disputed issue here, because the denominator for determining that percentage may be 

larger or smaller, depending on whether licensed beds (all beds possible) or certified beds 

(beds physically existent at a facility designated for use by Medicaid patients) is used. 

Third, a nursing facility must have a Medicaid utilization rate of at least 65 percent as of the 

last day of the calendar year immediately preceding the state fiscal year. R.C. 

5165.23(A)(3). There is no dispute between the parties that Peregrine satisfies the third 

criterion. 

{¶ 50} ODM determines how much a Medicaid-funded nursing facility receives then 

based on a "total per medicaid day payment rate." R.C. 5165.23(A); R.C. 5165.15. This 

"total per medicaid day payment rate" is computed by determining the sum of six variables, 

one of which is a critical access incentive payment for qualifying nursing facilities. R.C. 

5165.15(A). If a nursing facility qualifies for a critical access incentive payment, then ODM 

totals the facility's other variables under R.C. 5165.15(A) and increases the total by five 

percent. R.C. 5165.23(B). The five percent increase constitutes the critical access incentive 

payment. 

{¶ 51} ODM's decision about whether a nursing facility qualifies for a critical access 

incentive payment is subject to reconsideration when sought by the facility "on the basis of 

possible error of the calculation rate." Ohio Adm.Code 5160-3-24. ODM then issues a 

written reconsideration decision. ODM's reconsideration decision is not subject to any 

administrative remedy under R.C. Chapter 119 or any other provision of the Revised Code, 

resulting in this mandamus action being Peregrine's only legal remedy. Mandamus is an 
No. 18AP-16 17 

appropriate remedy where no statutory right of appeal is available to correct an abuse of 

discretion by an administrative body. State ex rel. Cydrus v. Ohio Public Emps. Retirement 

Sys., 127 Ohio St.3d 257, 2010-Ohio-5770, ¶ 12. 

B. Facts 

{¶ 52} Peregrine Health Services of Columbus, LCC operates Summit's Trace 

Healthcare Center, while Peregrine Health Services of Cincinnati, LLC operates Oak 

Pavilion Nursing Center. (Feb. 3, 2017 Petition at ¶ 1-2.) ODM is responsible for 

determining and issuing critical access incentive payments to qualified nursing facilities 

according to R.C. 5165.15 and 5165.23. On February 3, 2017, Peregrine filed a verified 

petition for a writ of mandamus seeking a writ to compel ODM to distribute critical access 

incentive payments to them under R.C. 5165.15(A)(5) and 5165.23 for state fiscal year 2017. 

{¶ 53} The facts of the underlying matter are undisputed. The parties agree that the 

sole issue is the meaning of the term "occupancy rate" as used in R.C. 5165.23(A)(2) to 

calculate the critical access incentive payment under that statute. Peregrine argues that the 

calculation of an "occupancy rate" for purposes of R.C. 5165.23(A)(2) is determined by 

using the number of beds actually in use at the nursing facility that have been certified for 

Medicaid care and reimbursement (hereinafter referred to as "certified beds"). ODM 

argues the determination is based on the often greater number of beds a nursing facility is 

licensed to have (hereinafter referred to as "licensed beds"), but that is not necessarily in 

use. 

{¶ 54} Peregrine claims that ODM "wrongfully and arbitrarily" denied them the 

critical access incentive payments based on ODM's incorrect interpretation of the term 

"occupancy rate." (Petition at ¶ 32, 34.) Peregrine attached in support of their petition the 

affidavit of Jeffrey Heaphy, a Nursing Home Administrator ("NHA") Partner at Plant & 

Moran, PLLC, who specializes in Medicaid and Medicare and the health care industry and 

who prepared certain Medicaid Cost Reports for Peregrine. 

{¶ 55} On March 7, 2017, ODM filed a motion to dismiss the complaint for failure to 

state a claim on which relief may be granted pursuant to Civ.R. 12(B)(6). ODM argued its 

interpretation of occupancy rate was not unreasonable, irrational, or inconsistent with the 

statutory purpose and, consequently, that Peregrine had failed to state a claim for which 

relief could be granted. 
No. 18AP-16 18 

{¶ 56} On April 4, 2017, Peregrine filed a memorandum in opposition to ODM's 

motion to dismiss with an attached new affidavit of the same Jeffrey Heaphy, along with 

supporting documents. On April 17, 2017, ODM filed a reply in support of its motion to 

dismiss. On May 3, 2017, Peregrine requested leave to file a sur-reply, which was opposed 

by ODM by memorandum filed the same day. 

{¶ 57} By journal entry dated November 1, 2017, the trial court denied ODM's 

motion to dismiss, denied Peregrine's motion for leave to file sur-reply, and set the matter 

for supplemental briefing and hearing. 

{¶ 58} On November 22, 2017, the trial court conducted a bench trial at which it 

admitted the following documentary evidence: the verified petition for a writ of mandamus; 

the affidavits of Jeffrey Heaphy that had been filed on February 3 and April 4, 2017; the 

affidavits of Peregrine's counsel authenticating certain exhibits; the affidavit of Terry 

Moore, section chief for ODM's long-term care, rate-setting, and managed care rate-setting 

section; biographical information on witnesses Heaphy, Moore, and Roger Allan 

Dickerson, ODM's deputy director of ODM's rate-setting and cost-setting section; and 

certain other exhibits offered by the parties. The trial court also admitted and considered 

the testimony of Heaphy, Moore, and Dickerson. The transcript of the hearing and the 

admitted exhibits are part of the record of this appeal. 

{¶ 59} On December 11, 2017, the trial court issued its decision denying the 

requested writ. The trial court found that all three witnesses who testified at the hearing 

were qualified as expert witnesses. Heaphy qualified "as an expert on the nursing home 

industry, and specifically, on third-party payer reimbursement arrangements." (Dec. 11, 

2017 Decision at 3.) Moore qualified as an expert on Medicaid-related matters such as rate 

setting, managed care rate setting, developing regulations for the Ohio Administrative 

Code, and working "to 'translate' Medicaid statutes into explanations the [ODM's] IT 

personnel can understand in writing programs for accounting and other record keeping." 

Id. at 4. The trial court stated in its decision that Moore "offered very credible testimony," 

and that she "demonstrated a solid understanding of the subtle issues involved in 

calculations such as those challenged in this case." Id. Dickerson qualified as an expert 

based on his 15 years of Medicaid experience. The trial court stated in its decision that 

Dickerson "essentially confirmed Ms. Moore's explanation of how the relevant statute is 
No. 18AP-16 19 

used, that [ODM] has never used anything except 'licensed' beds in calculating the 

occupancy rate of a facility for critical access payments, and that [ODM] is proceeding in a 

way it deems both logical and consistent with the legislature's language and intent." Id. at 

5. 

{¶ 60} The trial court noted that the term "occupancy rate" is not defined in R.C. 

Chapter 5165, and that "[t]he statute does not specifically address whether to use 'licensed' 

or 'certified' beds to calculate critical access payments under 5165.23(A)(2)." (Decision at 

5.) The trial court found R.C. 5165.23(A)(2) to be ambiguous. The trial court stated: 

A nursing facility occupancy rate could be calculated using all 

of its licensed beds, or using only Medicaid certified beds. 

There are pro's [sic] and con's [sic] to each approach. * * * 

Figuring out what approach is best for the public in conducting 

critical access incentive payment calculations is, therefore, a 

matter of judgment. The General Assembly did not settle that 

issue with this statutory language. The Department charged 

with implementation of the language is left to apply the 

statutory concept in a sensible manner. 

(Decision at 6.) 

{¶ 61} The trial court found that it was appropriate to defer to ODM's interpretation 

of "occupancy rate" for purposes of determining whether a nursing facility qualified for a 

critical access incentive payment. The trial court found the evidence showed ODM "was 

acting in a reasonable and good faith manner in implementing the modest legislative 

guidance on computing an 'occupancy rate' pursuant to R.C. 5165.23(A)(2)." (Decision at 

7.) Relying on the holding of In re Champaign Wind, L.L.C., 146 Ohio St.3d 489, 2016-

Ohio-1513, ¶ 36 ("when a statute does not prescribe a particular formula or methodology, 

the appropriate administrative agency has broad discretion in deciding how to implement 

its duties"), the trial court concluded that ODM "must be allowed" broad discretion in 

deciding how to implement R.C. 5165.23(A)(2). (Decision at 7.) 

{¶ 62} The trial court was not persuaded by Peregrine's argument that ODM had 

changed its interpretation, previously using another formula, and that this was material to 

its determination of this matter. 

Principles of waiver or estoppel do not apply against the state 

or its agencies. Silver Lining [Group EIC Morrow Co. v. Ohio 

Dept. of Edn. Autism Scholarship Program, 10th Dist. No. 

16AP-398, 2017-Ohio-7834], ¶ 54. Thus, the fact the [ODM] 
No. 18AP-16 20 

changed its interpretation of another formula – which the court 

accepts was done in good faith based upon the review that their 

original formula was mistaken – does nothing to demonstrate 

that the consistent interpretation applied to R.C. 5165.23 is 

unlawful. 

(Decision at 7.) 

{¶ 63} The trial court then concluded that Peregrine had not demonstrated 

entitlement to a writ of mandamus: 

"It is a fundamental tenet of administrative law that an agency's 

interpretation of a statute that it has a duty to enforce will not 

be overturned unless the interpretation is unreasonable." State 

ex rel. Clark v. Great Lakes Constr. Co., 99 Ohio St.3d 320, 

2003-Ohio-3802, ¶ 10 and cases cited. To prove an abuse of 

discretion, the agency interpretation must be "unreasonable, 

arbitrary, or unconscionable." That plainly is not true here. 

[Peregrine] have not demonstrated they are entitled to a Writ. 

(Decision at 8.) 

{¶ 64} On January 5, 2018, Peregrine timely appealed from the December 11, 2017 

judgment. On January 12, 2018, ODM conditionally cross-appealed from the trial court's 

entry journalized on November 1, 2017 that denied ODM's motion to dismiss the 

mandamus action. 

II. LAW AND DISCUSSION – APPEAL 

{¶ 65} In addition to the parties' disagreement on the standard of review this Court 

should apply in determining whether the trial court erred in entering judgment in favor of 

ODM,3 ODM argues that our standard of review is abuse of discretion. It also asserts that 

this Court should defer to ODM's reasonable construction of its statutes and rules, 

regardless of the standard of review applied in this matter: 

Whatever standard of review is being applied, "[a]n agency's 

interpretation of a statute that governs its actions should be 

given deference so long as the interpretation is not irrational, 

unreasonable or inconsistent with the statutory purpose." See, 

e.g., Morning View Care Center-Fulton v. Ohio Dept. of 

 

3 ODM cites this Court's holding in State ex rel. BDFM Co. v. Ohio Dept. of Transp., 10th Dist. No. 11AP-1094, 

2013-Ohio-107, which supports the proposition that a trial court's decision in a mandamus action is generally 

reviewed for abuse of discretion. 
No. 18AP-16 21 

Human Servs., 148 Ohio App.3d 518, 2002-Ohio-2878, ¶ 43 

(10th Dist.). 

(ODM Combined Brief at 12.) 

{¶ 66} Peregrine argues for de novo review but acknowledges that, generally, the 

standard of review is abuse of discretion. ODM has conceded, however, and we agree that 

"[t]he question presented here is purely legal; there are no disputed material facts." See

ODM Combined Brief at 1. Peregrine relies on this Court's holding in State ex rel. V&V Risk 

Servs. v. State Bur. of Workers' Comp., 10th Dist. No. 11AP-742, 2012-Ohio-3583 (where a 

"stipulated record presents a question of law, appellate courts review a writ of mandamus 

issued by a trial court de novo"), to support their position that de novo is the appropriate 

standard of review here. Peregrine also relies on Cincinnati Entertainment Assocs., Ltd. v. 

Bd. of Commrs., 141 Ohio App.3d 803 (1st Dist.2001) for de novo review. In Cincinnati 

Entertainment Assocs., Ltd., the First District Court of Appeals applied de novo review to 

a trial court's grant of writ of mandamus. "While the court recognized that in certain cases 

the abuse of discretion standard was used for appellate review of writ of mandamus, such 

review is 'limited to their particular circumstances.' [Cincinnati Entertainment Assocs., 

Ltd.] at 810. However, when faced with a stipulated record and contract interpretation, 

such [statutory] construction is a matter of law, which is reviewed de novo." (Emphasis 

sic.) (Peregrine Brief at 20.) 

{¶ 67} Additionally, Peregrine cites State v. McKelvey, 151 Ohio App.3d 673 (7th 

Dist.2003) in support of de novo review. In McKelvey, the Seventh District Court of 

Appeals applied the de novo standard in a mandamus review where the parties had 

stipulated to the underlying facts, and the issue on appeal was the trial court's 

interpretation of a statute. Id. at 675. The McKelvey court held that, "[a]s the construction 

of a statute is a question of law, not fact, a trial court's interpretation of a statute is not 

entitled to deference on appeal. Thus, we review the trial court's decision to grant the writ 

of mandamus de novo." (Internal citations omitted.) Id. Finally, Peregrine cites State ex 

rel. Manley v. Walsh, 142 Ohio St.3d 384, 2014-Ohio-4563, in which the Supreme Court of 

Ohio reviewed a denial of a writ of mandamus on a de novo standard notwithstanding the 

general rule that the standard of review in a mandamus case is abuse of discretion. 

{¶ 68} Having similarly conducted an independent review of the record and the law 

regarding the standard of review in a case such as this, I agree with the majority that de 
No. 18AP-16 22 

novo review is appropriate. There are no material disputed facts and the only issue for 

review is whether ODM's interpretation of R.C. 5165.23(A)(2) was proper and reasonable, 

which is purely a question of law. "Statutory interpretation is a question of law subject to 

de novo review." Silver Lining Group EIC Morrow Co. v. Ohio Dept. of Edn. Autism 

Scholarship Program, 10th Dist. No. 16AP-398, 2017-Ohio-7834, ¶ 33. 

{¶ 69} I would address Peregrine's assignments of error together, as they are so 

closely related that discussing them individually would result in unnecessary repetition and 

redundancy. 

{¶ 70} Peregrine asserts the trial court abused its discretion4 by affording improper 

deference to ODM's interpretation of R.C. 5165.23—an error of law—that resulted in its 

finding that ODM's interpretation of R.C. 5165.23 was reasonable, all of which underlay 

ODM's denial of the critical access incentive payments as being unreasonable, arbitrary, 

and/or unconscionable. Peregrine contends that this led the trial court to conclude that 

Peregrine was not entitled to a writ of mandamus because it had failed to demonstrate that 

ODM had a duty to perform the act requested—the payment of critical access incentive 

payments to Peregrine. 

{¶ 71} The statute at issue, R.C. 5165.23(A), provides: "Each fiscal year, the 

department of medicaid shall determine the critical access incentive payment for each 

nursing facility that qualifies as a critical access nursing facility." Under Ohio Adm.Code 

5160-3-24, Peregrine may request reconsideration from ODM of a prospective nursing 

facility rate on the basis of possible error in the calculation of the rate. Id. This section 

further provides that "ODM's decision at the conclusion of the rate reconsideration process 

 

4 The modern edition of Black's Law Dictionary, defines abuse of discretion so as to fully take into account 

the fact that an error of law constitutes an abuse of discretion. It states that an abuse of discretion is "[a]n 

adjudicator's failure to exercise sound, reasonable, and legal decision-making," or "[a]n appellate court's 

standard for reviewing a decision that is asserted to be grossly unsound, unreasonable, illegal, or unsupported 

by the evidence." (Emphasis added.) Black's Law Dictionary 12 (10th Ed.2014). Moreover, courts that have 

directly considered the matter have invariably concluded that a court does not have discretion to violate the 

law. See State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, ¶ 15-26 (2d Dist.) (discussing the varying 

formulations of what constitutes abuse of discretion and concluding "[n]o court -- not a trial court, not an 

appellate court, nor even a supreme court -- has the authority, within its discretion, to commit an error of 

law"); see also, e.g., State v. Robinson, 10th Dist. No. 17AP-707, 2018-Ohio-1166, ¶ 7; State v. Moncrief, 10th 

Dist. No. 13AP-391, 2013-Ohio-4571, ¶ 7. As Justice O'Donnell of the modern Supreme Court of Ohio has 

opined, " '[a] court abuses its discretion when its ruling is founded on an error of law or a misapplication of 

law to the facts.' " Independence v. Office of the Cuyahoga Cty. Executive, 142 Ohio St.3d 125, 2014-Ohio4650, ¶ 49 (O'Donnell, J., dissenting), quoting Doe v. Natl. Bd. of Med. Examiners, 199 F.3d 146, 154 (3d 

Cir.1999). 
No. 18AP-16 23 

shall not be subject to any administrative proceedings under Chapter 119. or any other 

provision of the Revised Code." Ohio Adm.Code 5160-3-24(B). 

{¶ 72} Both Peregrine and ODM agree that Peregrine satisfied two of the three 

criteria of R.C 5165.23 in order to receive incentive payments. The parties agree that 

Peregrine facilities were both located in an empowerment zone in satisfaction of R.C. 

5165.23(A)(1). The parties also agree that Peregrine met the Medicaid utilization rate of at 

least 65 percent as set forth in R.C. 5165.23(A)(3). The parties do not dispute the data 

submitted by Peregrine that established the number of licensed beds and the number of 

certified beds. Thus, the sole issue presented to the trial court was whether the calculation 

of the occupancy rate is determined by using the number of licensed beds, as argued by 

ODM, or by using the number of certified beds, as argued by Peregrine. 

{¶ 73} The term "occupancy rate" is not defined in R.C. 5165.23. Peregrine argues 

it satisfied the requirement of R.C. 5165.23(A)(2) in having an occupancy rate of at least 85 

percent for fiscal year 2017, and thereby being eligible for critical access incentive payments 

provided for in R.C. 5165.23. Peregrine disputes how ODM calculated the critical access 

payments for fiscal year 2017, arguing that ODM incorrectly based its calculation on the 

number of licensed beds, rather than the lesser number of certified beds in Peregrine's 

facilities. Peregrine contends that ODM's calculation ignores the plain language of R.C. 

5165.23 and, therefore, is arbitrary and contrary to the intent of the General Assembly in 

enacting R.C. 5165.23. 

{¶ 74} Resolving this disputed issue requires this Court to interpret the relevant 

statutory provisions, which is a question of law. This Court must determine whether ODM's 

denial of the critical access incentive payments to Peregrine, based on its interpretation of 

the term "occupancy rate" as used in R.C. 5165.23(A)(2), was unreasonable, arbitrary, 

and/or unconscionable. For the reasons that follow, I would find that it was. 

{¶ 75} I restate paragraphs 26 through 28 of the majority decision for the purpose 

of creating clarity in understanding why I diverge from the majority in its application of the 

law to the claims of the parties. 
No. 18AP-16 24 

{¶ 76} The parties agree that, in 2012,5 the Ohio General Assembly enacted critical 

access incentive payments that could be awarded to nursing facilities located in highly 

distressed urban and rural communities to encourage the nursing facilities to remain in 

those communities, thereby keeping "vital and needed senior health services in place" 

there. (Petition at ¶ 11-12; ODM Mot. to Dismiss at 1.) The parties likewise agree the critical 

access incentive payments "were put in place to address the potential for a lack of access to 

healthcare by both rural and inner-city residents, a high proportion of whom are poor and 

chronically ill and—thus—more likely to be Medicaid recipients." (ODM Mot. to Dismiss at 

1, citing Petition at ¶ 11-12.) The parties further agree that the critical access incentive 

payments make it economically feasible for the nursing facilities to remain in their 

communities, where they also help by providing significant local employment. Id.

{¶ 77} R.C. 5165.15 establishes the total per Medicaid day payment rate, including 

the critical access incentive payment, that ODM shall pay a nursing facility during a state 

fiscal year. Calculation of the Medicaid day payment rate for fiscal year 2017 required ODM 

to determine the sum of all the following in accordance with R.C. 5165.15(A): 

(1) The per medicaid day payment rate for ancillary and 

support costs determined for the nursing facility under 

section 5165.16 of the Revised Code; 

(2) The per medicaid day payment rate for capital costs 

determined for the nursing facility under section 5165.17 of the 

Revised Code; 

(3) The per medicaid day payment rate for direct care costs 

determined for the nursing facility under section 5165.19 of the 

Revised Code; 

(4) The per medicaid day payment rate for direct care costs 

determined for the nursing facility under section 5165.19 of the 

Revised Code; 

(5) If the nursing facility qualifies as a critical access nursing 

facility, the nursing facility's critical access incentive payment 

paid under section 5165.23 of the Revised Code. 

 

5 The statute, previously codified as R.C. 5111.246 but now codified as R.C. 5165.23, became effective on 

September 10, 2012. 
No. 18AP-16 25 

{¶ 78} In order for a nursing facility to qualify for the critical access incentive 

payment provided for in R.C. 5165.15(A)(5), ODM must determine that the nursing facility 

satisfies the requirements of R.C. 5165.23(A), which provided for state fiscal year 2017 as 

follows: 

(A) Each state fiscal year, the department of medicaid shall 

determine the critical access incentive payment for each 

nursing facility that qualifies as a critical access nursing facility. 

To qualify as a critical access nursing facility for a state fiscal 

year, a nursing facility must meet all of the following 

requirements: 

(1) The nursing facility must be located in an area that, on 

December 31, 2011, was designated an empowerment zone 

under the "Internal Revenue Code of 1986," section 1391, 26 

U.S.C. 1391. 

(2) The nursing facility must have an occupancy rate of at 

least eighty-five per cent as of the last day of the calendar year 

immediately preceding the state fiscal year. 

(3) The nursing facility must have a medicaid utilization rate of 

at least sixty-five per cent as of the last day of the calendar year 

immediately preceding the state fiscal year. 

(4) The nursing facility must have been awarded at least five 

points for meeting accountability measures under section 

5165.25 of the Revised Code for the fiscal year and at least one 

of the five points must have been awarded for meeting the 

accountability measures identified in divisions (C)(9), (10), 

(11), (12), and (14) of section 5165.25 of the Revised Code. 

(Emphasis added.) H.B. No. 483 as enacted by the 130th General Assembly, effective 

Sept. 15, 2014. 

{¶ 79} ODM is to determine the critical access incentive payment for each nursing 

facility that qualifies for the payment in accordance with R.C. 5165.23. ODM issues on an 

annual basis its fiscal year rate setting reports to each nursing facility in the State. ODM 

must pay each qualified nursing facility the critical access incentive payment. R.C. 5165.15. 

A nursing facility that disagrees with the rate calculated by ODM may request 

reconsideration "of a prospective [nursing facility] rate on the basis of a possible error in 

calculation of the rate." Ohio Adm.Code 5160-3-24(A). Once a nursing facility requests 

reconsideration, ODM must respond in writing to the facility. Ohio Adm.Code 5160-3-
No. 18AP-16 26 

24(A)(3). ODM's decision at the conclusion of the rate reconsideration process is not 

subject to any administrative proceedings under R.C. Chapter 119 or any other provision of 

the Revised Code. Ohio Adm.Code 5160-3-24(B). 

{¶ 80} The trial court's decision discusses the relevant statutes and rules but appears 

to wholly concede authority in this matter to ODM. The trial court states in its decision: 

The complexity of the Medicaid reimbursement system found 

in R.C. Chapter 5165 is difficult to overstate. The record reflects 

that nearly a thousand nursing home facilities operate across 

Ohio. They operate in empowerment zones, and in other vastly 

different settings urban, suburban, and rural. [ODM] must 

endeavor to stretch available funding while seeking to 

encourage quality care in all those varied settings. Writing and 

administering rules and formulas to capture the necessary 

date, track patient utilization, encourage new efforts like 

"critical access," and pay for it all in a timely fashion (while not 

falling victim to fraud) cannot easily be accomplished. For that 

reason, [ODM] is afforded substantial deference in how it 

fulfills its duties so long as it appears to be acting reasonably 

and in good faith. 

The evidence shows [ODM] was acting in a reasonable and 

good faith manner in implementing the modest legislative 

guidance on computing an "occupancy rate" pursuant to R.C. 

5165.23(A)(2). Administrative agencies have the authority to 

make rules to fill gaps left, implicitly or explicitly, by legislature. 

Silver Lining [Group EIC Morrow Co. v. Ohio Dept. of Edn. 

Autism Scholarship Program, 10th Dist. No. 16AP-398, 2017-

Ohio-7834], ¶ 50 and cases cited. "[W]hen a statute does not 

prescribe a particular formula or methodology, the appropriate 

administrative agency has broad discretion in deciding how to 

implement its duties. [citation omitted]." In re Champaign 

Wind, L.L.C., 146 Ohio St.3d 489, 2016-Ohio-1513, ¶ 36. 

[ODM] must be allowed to do so here. 

Principles of waiver or estoppel do not apply against the state 

or its agencies. Silver Lining, supra ¶ 54. Thus, the fact the 

[ODM] changed its interpretation of another formula – which 

the court accepts was done in good faith based upon the view 

that their original formula was mistaken – does nothing to 

demonstrate that the consistent interpretation applied to R.C. 

5165.23 is unlawful. 

"It is a fundamental tenet of administrative law that an agency's 

interpretation of a statute that it has a duty to enforce will not 

be overturned unless the interpretation is unreasonable. State 
No. 18AP-16 27 

ex rel. Clark v. Great Lakes Constr. Co., 99 Ohio St.3d 320, 

2003-Ohio-3802, ¶ 10 and cases cited. To prove an abuse of 

discretion, the agency interpretation must be "unreasonable, 

arbitrary, or unconscionable." That plainly is not true here. 

[Peregrine] have not demonstrated they are entitled to a Writ. 

(Decision at 7-8.) 

{¶ 81} Although it is appropriate in some instances for a trial court to afford 

deference to an agency's interpretation of the statutes and rules applicable to its function, 

such deference is not unfettered—an agency's interpretation and application of its rules 

cannot be arbitrary, capricious, or otherwise contrary to law; nor can the interpretation and 

application constitute an abuse of discretion. Ohio Academy of Nursing Homes, Inc. v. 

Barry, 56 Ohio St.3d 120, 129 (1990). See also Guethlein v. Ohio State Liquor Control 

Comm., 10th Dist. No. 05AP-888, 2006-Ohio-1525, ¶ 24; HCMC, Inc. v. Ohio Dept. of Job 

& Family Servs., 179 Ohio App.3d 707, 2008-Ohio-6223, ¶ 25 (10th Dist.); Athens Cty. Bd. 

of Commrs. v. Schregardus, 83 Ohio App.3d 868 (1oth Dist.1992). "A proposed 

interpretation that is inconsistent with or frustrates the legislative intent is not a reasonable 

one and does not create an ambiguity." State v. Erskine, 4th Dist. No. 14CA17, 2015-Ohio710, ¶ 26. 

{¶ 82} Based on a de novo review of the record, I would find ODM's latest 

interpretation of R.C. 5165.23(A)(2) to be arbitrary in that it changed with little to no 

explanation with no underlying change of language in the law. The trial court's deference 

to the agency was not in keeping with the role of the judiciary to review the agency's decision 

according to a legal standard of review and by applying the law of statutory construction in 

reviewing this appeal—ascertaining and giving effect to the legislature's intent in enacting 

the statute, including its plain meaning. State v. Bundy, 4th Dist. No. 11CA818, 2012-Ohio3934, ¶ 46, quoting State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, ¶ 9. ODM asserts 

that R.C. 5165.23(A)(2) is ambiguous because it does not define "occupancy rate," while 

that term is defined in other statutes in R.C. Chapter 5165. ODM then engages in an in pari 

materia analysis with some of those other statutes, some of which were enacted years before 

R.C. 5165.23.

{¶ 83} I disagree that R.C. 5165.23(A)(2) is ambiguous. It is well-settled law in Ohio 

that a term is not ambiguous merely because it is not defined. Nationwide Mut. Fire Ins. 

Co. v. Guman Bros. Farm, 73 Ohio St.3d 107, 108 (1995). Nor is "occupancy rate" 
No. 18AP-16 28 

ambiguous as used here. The parties agree that occupancy occurs when a patient occupies 

a bed. The term "rate" is a "proportional or relative value; the proportion by which quantity 

or value is adjusted." Black's Law Dictionary, 1452 (10th Ed.2014). Consequently, 

occupancy rate is the percentage to which a nursing facility's beds are occupied during a 

certain period of time. The occupancy rate is determined by the number of actual beds 

located in the nursing facility available for Medicaid patients (that is, certified beds) and 

the number of patients occupying those beds (that is, inpatient days). ODM's current 

methodology operates to determine an occupancy rate using the number of licenses the 

nursing facility holds, regardless of the actual number of certified beds in the nursing 

facility, resulting in distorted results that ultimately frustrate the purpose for which the 

legislature enacted the critical access incentive payment. 

{¶ 84} I compare the facts of the case before us with those this Court considered in 

Eaglewood Care Ctr. v. State Certificate of Need Review Bd., 10th Dist. No. 91AP-357, 1992 

Ohio App. LEXIS 1265, 1992 WL 55435 (Mar. 17, 1992). In Eaglewood, a nursing home 

sought review of the State Certificate of Need Review Board's ("CONRB") determination 

denying the nursing home's application for a certificate of need to construct an addition to 

an existing nursing home facility. The CONRB based its denial on a combination formula, 

which included "rest home beds, beds not in service, and beds not capable or permitted by 

licensure or certification status to serve the residents." Id. at *11. The Eaglewood Court 

rejected CONRB's approach, stating: 

Although not expressly stated by the hearing examiner, it 

appears that the findings were predicated upon an assumption 

that there are excess beds unless every bed in the county is 

occupied. Under such an assumption, there will always be an 

excess of beds in every county, since as a practical matter, it is 

completely unrealistic to have 100 percent occupancy at any 

time in all the nursing homes. This is why the only evidence as 

to full occupancy indicates that full occupancy commences at 

95 percent. To this extent, the hearing examiner's findings 

adopted by CONRB are not supported by reliable, probative 

and substantial evidence and are contrary to law. 

The findings are predicated upon erroneous assumptions. 

First, restricted beds, such as those at the Masonic Home, 

should not be included. Inclusion of such beds in this case 

greatly distorts the occupancy rate in Clark County, both 

because of the substantial in-migration, and because of the 
No. 18AP-16 29 

great number of unoccupied beds. Secondly, there was an 

assumption by the hearing examiner that all authorized beds 

necessarily are included. The law does not contemplate that 

some facilities can place numerous beds in a "bed bank" to be 

used at some undetermined future time if needed. Rather, even 

though "authorized" by its CON, beds which are not in 

existence and will not be in existence within the reasonable, 

foreseeable future, should not be counted in determining 

whether to grant a CON application. 

The purpose of the CON determination is to serve the public in 

order to provide necessary facilities for the persons who need 

the service of the facility seeking the CON, not to benefit 

operators of other facilities who have no desire or intention of 

providing such service within the foreseeable future. The fact 

that the facility in question has a 99.11 percent occupancy rate 

as found by the hearing examiner, indicates that there is some 

need with respect to that facility. Whether 30 additional beds 

are needed is not a question that we can properly determine, 

such issue being for the CONRB. However, such determination 

must be predicated upon evidence directly pertinent to the 

need, and cannot be predicated solely upon the application of 

the so-called bed-need formula, as we indicated above. 

Id. at *18 - 20. The Eaglewood court recognized that the policy in place "is to meet the 

needs of patients, not mathematical formulas." Id. at *24. This Court subsequently 

recognized that, just because beds are authorized (that is, licensed beds), it does not mean 

that they should be counted in determining whether to grant a certificate of need ("CON") 

application. Summit Villa Care Ctr., Inc., v. Ohio Dept. of Health, 81 Ohio App.3d 761, 767 

(10th Dist.1992). 

{¶ 85} I find the case before us similar to those CON cases, albeit the formulas may 

be different. The public policies for each exist to best serve Ohio's aging population, 

providing Ohioans equal access to quality care. Here, ODM's calculation is based on the 

presumption that occupancy for purposes of R.C. 5165.23(A)(2) includes all beds that 

potentially "could have been made available for occupancy." (Emphasis sic.) (ODM 

Combined Brief at 3.) The statute, however, does not indicate that the occupancy rate is 

based on a number of potential beds (licensed beds). At trial, ODM acknowledged that "if 

there are banked beds; i.e., beds that are out of service, they are automatically removed 

from capacity because they're not available for use by residents." (Nov. 22, 2017 Tr. at 73.) 
No. 18AP-16 30 

{¶ 86} Courts have " 'no authority under any rule of statutory construction to add to, 

enlarge, supply, expand, extend or improve the provisions of the statute to meet a situation 

not provided for.' " Storer Communications, Inc. v. Limbach, 37 Ohio St.3d 193, 194 

(1988), quoting State ex rel. Foster v. Evatt, 144 Ohio St. 65 (1944), paragraph eight of the 

syllabus. By adopting ODM's interpretation of R.C. 5165.23(A)(2), the trial court erred in 

expanding and enlarging the definition of occupancy rate, contrary to the legislature's 

intent. See also State ex rel. Gen. Elec. Supply Co. v. Jordano Elec. Co., Inc., 53 Ohio St.3d 

66, 71 (1990), where the Supreme Court declined "to read into the statute an intent that the 

General Assembly could easily have made explicit had it chosen to do so." 

{¶ 87} Similarly, if the legislature had intended R.C. 5165.23(A)(2) to encompass 

potential occupancy rather actual occupancy, it could have and would have said so. Id. The 

legislature enacted R.C. 5165.16 and 5165.17 more than a decade before enacting R.C. 

5165.23. If the legislature had intended the term "occupancy rate" as used in R.C. 

5165.23(A)(2) to have the same meaning as the earlier enacted statutes, it could have done 

so by including the same language or by referencing the other statutes in the newer statute. 

I am also persuaded that adopting ODM's interpretation of R.C. 5165.23(A)(2) would lead 

to unreasonable results and have consequences that are contrary to the legislature's stated 

purposes for the critical access incentive payment: to ensure that inner-city and rural 

communities have access to quality health care by providing incentives that will allow 

nursing facilities to continue operating in those communities. Just as in Eaglewood, the 

needs of the inner-city and rural populations must be considered; the purpose of the critical 

care incentive payment determination is to serve the public, and such determination cannot 

be predicated solely on the application of ODM's arbitrary and unreasonable interpretation 

of R.C. 5165.23(A)(2). 

{¶ 88} Based on the foregoing reasons, I find that ODM's interpretation of 

occupancy rate under R.C. 5165.23(A)(2) that resulted in denying critical access incentive 

payments to Peregrine for state fiscal year 2017 was unreasonable and contrary to law. I 

would find, therefore, that the trial court erred in deferring to ODM's interpretation and 

denying Peregrine the writ of mandamus and would sustain Peregrine's three assignments 

of error. 
No. 18AP-16 31 

III. LAW AND DISCUSSION - ODM'S CONDITIONAL CROSS-APPEAL 

{¶ 89} Since the majority decided Peregrine's appeal differently, it mooted ODM's 

cross-appeal. On substantive grounds, I would deny it. We review de novo a trial court's 

disposition of a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim on which relief 

can be granted. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, ¶ 5; 

Adams v. Margarum, 10th Dist. No. 16AP-515, 2017-Ohio-2741; Rooney v. Ohio State 

Hwy. Patrol, 10th Dist. No. 16AP-204, 2017-Ohio-1123; Stewart v. Fifth Third Bank of 

Columbus, Inc., 10th Dist. No. 00AP-258, 2001 Ohio App. LEXIS 197, 2001 WL 58727 

(Jan. 25, 2001). "A motion to dismiss for failure to state a claim upon which relief can be 

granted is procedural and tests the sufficiency of the complaint." State ex rel. Hanson v. 

Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548 (1992); Powell v. Vorys, Sater, 

Seymour and Pease, 131 Ohio App.3d 681, 684 (10th Dist.1998). In considering a Civ.R. 

12(B)(6) motion to dismiss, a trial court may not rely on allegations or evidence outside the 

complaint. State ex rel. Fuqua v. Alexander, 79 Ohio St.3d 206, 207 (1997). Rather, the 

trial court must limit its consideration to the four corners of the complaint and may dismiss 

the case only if it appears beyond a doubt that the plaintiff can prove no set of facts entitling 

the plaintiff to recover. O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 

242 (1975), syllabus; Ritchie v. Ohio Adult Parole Auth., 10th Dist. No. 05AP-1019, 2006-

Ohio-1210, ¶ 16, citing Singleton v. Adjutant Gen. of Ohio, 10th Dist. No. 02AP-971, 2003-

Ohio-1838, ¶ 18. In such cases, a trial court must presume that all factual allegations in the 

complaint are true and draw all reasonable inferences in favor of the nonmoving party. 

Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1998). This Court need not, however, 

accept as true any unsupported or conclusory legal propositions advanced in the complaint. 

Margarum at ¶ 12, citing Rooney at ¶ 14. 

{¶ 90} ODM argues that the trial court improperly denied its Civ.R. 12(B)(6) motion 

to dismiss Peregrine's petition for a writ of mandamus for failure to state a claim on which 

relief could be granted. ODM posits that Peregrine is barred from stating a valid claim for 

writs of mandamus compelling ODM to pay Peregrine critical access incentive payments 

because Peregrine did not meet the statutory criteria for such payments, based on ODM's 

interpretation of the term "occupancy rate" as it is used in R.C. 5165.23. (ODM's Combined 

Brief in passim.) 
No. 18AP-16 32 

{¶ 91} The trial court stated in its ruling denying ODM's motion to dismiss that 

attached to the verified original petition for a writ of mandamus were six exhibits, including 

"the extensive affidavit of Jeffrey Heaphy," whom the trial court ruled is "an expert in the 

nursing home industry." (Nov. 1, 2017 Journal Entry at 2-3.) The trial court found that the 

original verification of the petition by the nursing home facilities' president and the Heaphy 

affidavit appeared to add support to Peregrine's allegations. The trial court determined the 

petition stated the basis on which Peregrine alleged a "clear right to the payments for both 

of the denied claims and a clear legal duty upon ODM to make those payments, should this 

court find Peregrine's arguments valid." Id. at 3. The trial court concluded, therefore, that 

"[l]ooking solely at the verified petition and Heaphy affidavit, it would be inappropriate to 

dismiss [Peregrine's] claims at this preliminary stage." Id.

{¶ 92} Having independently reviewed the record, I would find the trial court's 

interpretation of the law and its application to ODM's Civ.R. 12(B)(6) motion to be sound. 

Accordingly, I would find that the common pleas court did not err in denying ODM's Civ.R. 

12(B)(6) motion to dismiss, and ODM's assignment of error on cross-appeal should be 

overruled. 

IV. CONCLUSION 

{¶ 93} Based on the foregoing, I would sustain Peregrine's assignments of error on 

appeal, reversing the judgment of the Franklin County Court of Common Pleas denying the 

requested writ of mandamus and thereby grant the writ of mandamus ordering ODM to 

distribute critical access incentive payments to Peregrine for state fiscal year 2017, 

consistent with this dissent. 

{¶ 94} Additionally, I would overrule ODM's assignment of error on cross-appeal, 

thereby affirming the decision of the Franklin County Court of Common Pleas denying 

ODM's March 7, 2017 motion to dismiss Peregrine's complaint for failure to state a claim 

on which relief may be granted pursuant to Civ.R. 12(B)(6) and deny ODM's cross-appeal. 

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